Phillips v. State

480 S.W.2d 361, 1972 Tenn. Crim. App. LEXIS 322
Court of Criminal Appeals of Tennessee·Decided February 18, 1972·Published·Cited by 3 cases

Opinion

OPINION

OLIVER, Judge.

Represented by retained counsel, Phillips was convicted in the Criminal Court of Sullivan County under two separate indici-[362]*362ments, one charging him with assaulting Carolyn Sue Paris by stabbing her with a knife with intent to commit first degree murder, and the other charging that on the same day he raped the same woman. The jury assessed his punishment at imprisonment for three years in the penitentiary for the felonious assault and at IS years in the rape case. The trial judge pronounced sentence and entered judgment accordingly and ordered the two sentences to be served consecutively. Unsuccessful in his motion for a new trial, the defendant has duly perfected his appeal in the nature of a writ of error to this Court and is represented here by court-appointed counsel, having been adjudged an indigent at the hearing upon his new trial motion.

In his Assignments of Error here the defendant reiterates the alleged errors raised in his motion for a new trial. His first five Assignments contest the sufficiency of the evidence. In summary and in effect he contends by these Assignments that the evidence preponderates against the verdicts and in favor of his innocence. The principles to which we must adhere in reviewing a record when such Assignments are advanced have been enunciated so very many times by our Supreme Court and this Court that they are now common knowledge in the legal profession. The jury’s verdict óf guilt, approved by the trial judge, strips the defendant of the presumption of innocence, with which the law clothed him throughout his trial, and he stands before this Court presumed to be guilty and he has the burden here of demonstrating that the evidence preponderates against the verdict and in favor of his innocence. The verdict so approved accredits the testimony of the prosecution witnesses and establishes the State’s theory of the case. We may review the evidence only to determine whether it preponderates against the verdict, and in doing so we are required to take the verdict as having established the credibility of the State’s witnesses. The verdict may not be overturned on the facts unless the evidence clearly preponderates against it and in favor of the innocence of the accused. Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768; Webster v. State, Tenn.Cr.App., 425 S.W.2d 799; Morelock v. State, Tenn.Cr.App., 460 S.W.2d 861.

This rule governing appellate review of criminal convictions makes unnecessary and, indeed, inappropriate, any detailed discussion of the evidence pro and con. Hargrove v. State, 199 Tenn. 25, 28, 281 S.W.2d 692, 694; Morrison v. State, 217 Tenn. 374, 397 S.W.2d 826, 400 S.W.2d 237.

We summarize the material evidence. Between 8:30 and 9:00 p. m. on Wednesday, August 12, 1970, 22-year-old Nurse’s Aide Carolyn Sue Paris parked her car in a department store parking lot in Kingsport (Sullivan County) and started in the store to do some shopping. Walking across the parking lot she passed the defendant’s parked automobile in which he and Johnny Berry were sitting. She had never seen either of the men before. Berry spoke to her and told her his name and she spoke and told him her first name. In response to his inquiry, she told him she was going into the store. When she finished her shopping and started back to her car Berry and the defendant were still sitting there in the parking lot. Berry asked her where she was going and she said she was going home. Berry asked her if she could go out and have a coke with him and she agreed. He got in her car and she drove to where she lived (she rented a room in a private home) and the defendant followed in his car. Incredible as it may seem, after parking her car she got in the car with these two total strangers, and then began a wild escapade which lasted until the following Saturday night.

With the defendant driving, they first went to Johnson City, where they stopped at the Golden Tiki — a beer tavern — and the defendant went inside and returned in a few minutes and said that a girl friend employed there could not accompany them because she had to work. From there they [363]*363drove to a remote area in Carter County referred to as the Watauga rock quarry, where they got out to walk around and the defendant tried two or three times to put his arm around Carolyn and she returned to the car. With her and Berry in the rear seat, the defendant then drove up into the mountains, asking Berry various vulgar and suggestive questions concerning Carolyn, and finally stopped about midnight at an isolated point in Sullivan County where the road had been widened at a small clearing to permit vehicles to pull off. There Berry got out of the car. The defendant then opened one of the rear doors of the car and ordered Carolyn to get out and remove her clothing. She took her shoes off and picked them up and started running down the road. When she fell he overtook her and led her by her hair back to the car. Disregarding her crying and pleading, Phillips ripped the buttons from her blouse, tore off her brassiere, pushed her into the back seat of the car and forced her to lie down by striking her in the face, held her hands and tore off her shorts, then removed her panties and her sanitary belt and napkin and threw them out of the car window, and then forcibly raped her, took her head in his hands and forced her into a loathsome act of perversion, put all the remainder of her clothes in the front seat and refused to give them to her, and left her nude on the back seat. He raped her again before Berry returned. Berry and the defendant then got in the front seat. After he had driven a short distance the defendant started talking about getting rid of her, and said that he would rather be charged with murder than with rape. The above-mentioned items which Phillips threw out of the car window were found by the investigating officer when Berry took him to the scene, and were admitted in evidence.

Notwithstanding Berry’s remonstrations and her crying, Phillips reached over the back of the front seat and cut her on the leg with his knife — not seriously as it turned out. It was then near daylight Thursday morning and the defendant drove them further into the mountains where they remained until about noon. Both men were drinking. They then drove to the Silver Spur in Johnson City where Berry went in and bought a six-pack of beer while the defendant remained in the car with Carolyn. She was dressed only in Berry’s shirt and what remained of her torn shorts, and was afraid to try to get out of the car and escape. Berry saw a friend of his, Jessie Presnell, and he accompanied them as they drove back through the mountains and stopped about nightfall in a wooded area beside a lake in Sullivan County. Berry had bought a bar of soap for the purpose of bathing in the lake, and while he and Presnell went swimming the defendant took Carolyn out of the car and started up the hill through the woods with her although she was crying and pleading with him to let her alone. When she began yelling for Berry to help her, the defendant struck her and she fell and he put his foot on her head and told her to stop calling for Berry. When Berry yelled at the defendant to stop hitting Carolyn and started up the hill to where they were, Phillips cut her on the stomach with his knife.

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Phillips v. State, 480 S.W.2d 361, 1972 Tenn. Crim. App. LEXIS 322 (Tenn. Ct. App. 1972).

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